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United States v. Fang

United States Court of Appeals, Eighth Circuit

December 28, 2016

United States of America Plaintiff- Appellee
v.
Tou Chi Fang Defendant-Appellant

          Submitted: October 20, 2016

         Appeal from United States District Court for the District of Minnesota - St. Paul

          Before WOLLMAN, SMITH, and COLLOTON, Circuit Judges.

          SMITH, Circuit Judge.

         On September 17, 2015, a jury convicted Tou Chi Fang of possession with intent to distribute methamphetamine ("meth"), in violation of 21 U.S.C. § 841(a)(1) and (b)(1)(C). Before trial, Fang moved to exclude certain past convictions of felony drug possession. The district court, [1] finding the prior convictions relevant to proving the elements of the crime, allowed testimony regarding the convictions. At the close of the government's case-in-chief, Fang moved for judgment of acquittal based on insufficiency of the evidence and rested his case. The district court denied the motion. The jury found Fang guilty, and the district court sentenced him to 110 months' imprisonment.

         On appeal, Fang seeks reversal of his conviction or, in the alternative, a new trial. He argues that (1) the evidence presented at trial was insufficient to support his conviction, and (2) the district court erred by admitting into evidence his prior convictions. We disagree and affirm the judgment of the district court.

         I. Background

         On November 6, 2014, the St. Paul Police Department conducted a warrant-authorized search of the housing unit of a suspect in an unrelated offense. During the search, two officers-Sergeant Kent Cleveland and Officer Daniel Mack-entered the living area of the unit and saw Fang and the suspect standing in the back of the room. Both Fang and the suspect immediately began moving toward the rear kitchen area, while the officers commanded them to get on the ground and raise their hands. Both officers testified that Fang placed his hand in his pocket and refused to remove it.

         Officer Mack testified that he saw Fang pull a plastic bag from his pocket and slide it across the floor under a nearby table. Sergeant Cleveland testified that although he did not see what Fang held in his hand, he did see Fang reach underneath the table after he eventually removed his hand from his pocket. Sergeant Cleveland recalled hearing the sound of a plastic bucket move underneath the table as if something had hit it. He also saw cash fall out of Fang's pocket during the encounter.

         After the officers handcuffed Fang and the suspect, they discovered a plastic bag containing 25 grams of meth with a thin bungee cord on top of it underneath the table next to a plastic bucket. Both officers testified that they recovered no other items from the area where Fang had placed his hand. Fang possessed on his person more than $3, 900 in small bills and a plastic bag containing ten smaller plastic bags. The bag type was consistent with those used for distributing user quantities of meth.

         At trial, the government presented testimony from Sergeant Erik Johnston, who arrested Fang in 2006 for possession of meth. Then-Officer Johnston witnessed Fang discard a baseball cap in a flowerbed immediately before Fang encountered the police. Johnston recovered the cap from the flowerbed and found 36.8 grams (including weight of packaging) of meth hidden inside a secret compartment. Fang later pleaded guilty to possession of meth in state court. The government also presented testimony from Officer Adam Bravo, who arrested Fang in 2012. Officer Bravo testified that Fang fled when he saw the police approach his residence. As the police pursued him, Fang grabbed a plastic bag from his pocket and threw it toward a house. When officers located the discarded bag, it contained a small quantity of meth. Fang again pleaded guilty to possession of meth in state court.

         Fang's pretrial suppression motion sought to exclude both of these convictions. But, the district court denied Fang's motion. Before the district court admitted the evidence at trial, it instructed the jury that it could use the testimony only to help establish whether Fang had knowledge that he possessed a controlled substance or had the intent to possess and distribute the controlled substance. After the government presented its case, Fang moved for judgment of acquittal, which the court denied. Without presenting evidence, he rested his case. The jury found Fang guilty.

          II. Discussion

         On appeal, Fang asks this court to reverse his conviction because the district court erred in denying his motion for judgment of acquittal. Fang also argues for a new trial because the district court erred in admitting into evidence ...


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